Mindler v. Clayton County, Ga., 1:91-CV-2741 JEC.

• Decision Date: 23 September 1994
• Docket Number: No. 1:91-CV-2741 JEC.,1:91-CV-2741 JEC.
• Citation: 864 F. Supp. 1329
• Parties: Charles Larry MINDLER, Plaintiff, v. CLAYTON COUNTY, GEORGIA, Clayton County Board of Commissioners, Ronnie Clackum, Robert Keller, William Lemacks, as Advisors and Directors of the Narcotics Squad of Clayton County, William Lemacks, in his capacity as Sheriff of Clayton County, Georgia, Ronnie Clackum, in his capacity as Chief of Police of Clayton County, Georgia, Robert Keller, in his capacity as District Attorney of Clayton County, Georgia, J.L. Massengale, Thomas David Ward, Rick Webster, R.V. McCain and Brian Crisp, Defendants.
• Court: U.S. District Court — Northern District of Georgia

864 F. Supp. 1329

Charles Larry MINDLER, Plaintiff, v. CLAYTON COUNTY, GEORGIA, Clayton County Board of Commissioners, Ronnie Clackum, Robert Keller, William Lemacks, as Advisors and Directors of the Narcotics Squad of Clayton County, William Lemacks, in his capacity as Sheriff of Clayton County, Georgia, Ronnie Clackum, in his capacity as Chief of Police of Clayton County, Georgia, Robert Keller, in his capacity as District Attorney of Clayton County, Georgia, J.L. Massengale, Thomas David Ward, Rick Webster, R.V. McCain and Brian Crisp, Defendants.

No. 1:91-CV-2741 JEC.

United States District Court, N.D. Georgia, Atlanta Division.

September 23, 1994.

Joseph Michael Todd, Office of Joseph Michael Todd, Jonesboro, GA, for plaintiff.

Theodore Freeman, William T. Mitchell, Drew, Eckl & Farnham, Atlanta, GA, Larry A. Foster, Foster & Foster, Jonesboro, GA, John C. Jones, Daryl A. Robinson, Office of State Atty. Gen., Atlanta, GA, for defendants.

ORDER

CARNES, District Judge.

This case is presently before the Court on plaintiff's Motion for Award of Costs, Expenses and Attorney's Fees pursuant to 42 U.S.C. § 1988 74-1 and defendants' Motion for Extension of Time 77-1. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that plaintiff's motion should be denied and that defendants' motion should be denied as moot.

BACKGROUND

This motion is based on the rendition of services to, and the costs and expenses incurred by, plaintiff in this case. The case was tried before this Court commencing December 6, 1993, and a jury verdict was rendered in favor of plaintiff against one of the defendants on December 9, 1993. Based upon this verdict, plaintiff filed this motion to recover his costs, expenses and attorney's fees on February 28, 1994. Defendants¹ have opposed plaintiff's motion for fees, costs and expenses, asserting that such motion was untimely.

DISCUSSION

Plaintiff's motion seeks an award of costs of litigation and an award of attorney's fees and expenses pursuant to 42 U.S.C. § 1988 ("§ 1988"). While § 1988 provides no time limit within which a prevailing party must file for attorney's fees, the applicable Federal Rules of Civil Procedure and the Local Rules of this Court do address the time within which a party must file any such motion seeking the award of fees and costs. According to the Local Rules, a bill of costs must be filed within thirty (30) days after the entry of judgment. LR 255-7, NDGa. The longest possible period for plaintiff to have filed his motion for attorney's fees was twenty (20) days from the entry of judgment.² See LR 270-1(2), NDGa. Accordingly, plaintiff's motion should be denied as untimely.

Plaintiff offers no excuse for his neglect to file his motion for attorney's fees and his bill of costs in a timely fashion. Instead, plaintiff argues that Local Rule 270-1(2) does not apply to awards of attorney's fees under § 1988, that this Court may exercise its discretion in determining whether plaintiff's motion was filed within a "reasonable" time, and that defendants have not been prejudiced by plaintiff's delay. The Court finds none of plaintiff's arguments to be persuasive. Contrary to plaintiff's argument, local rules limiting the time within which litigants may file motions for attorney's fees do apply to motions filed under § 1988. Pitts v. Freeman, 755 F.2d 897 (11th Cir.1985).³

Depriving a prevailing attorney of his attorney's fees is clearly a harsh result⁴ and one whose imposition gives this Court no pleasure. Were the Court dealing only with the failure to file timely a pleading, it would be much more reluctant to enter such an order. In this case, however, contrary to plaintiff's arguments, the defendant has been greatly prejudiced by plaintiff's delay in filing his motion for fees. Plaintiff seeks almost $120,000 in fees and costs in a case that resulted in a $49,000 jury verdict against one (1) of the eleven (11) named defendants. Plaintiff did not file his motion for fees until forty five (45) days after defendant's time for appeal had expired. Had the defendant been aware that he was subject to paying $169,000, as opposed to $49,000, he might well have chosen to appeal the judgment.⁵ Not aware of that exposure, defendant did not appeal.

Accordingly, defendant has been prejudiced in precisely the manner the local rule was intended to prevent. The time limit in Local Rule 270-1(2) was set so as to allow the losing party ten (10) days after the prevailing party has filed such a motion to file a notice of appeal. By waiting until the defendant's time within which to file any possible appeal had expired, plaintiff deprived defendant of the benefit provided by the local rule. Accordingly, plaintiff having failed to provide any excuse for his failure to file his motion for fees within the time specified by the local rules and the defendant having suffered substantial prejudice from that failure, the Court concludes that plaintiff's motion should be denied.

CONCLUSION

For the foregoing reasons, plaintiff's Motion for Award of Costs, Expenses and Attorney's Fees pursuant to 42 U.S.C. § 1988 74-1 is DENIED as untimely and defendants' Motion for...